Judge weighs motion to acquit driver in Summit fatal crash

This is a March, 2012 file photo of Tyler Festa leaving the Erie County Courthouse March 30 following a hearing related to criminal charges against him in the Dec. 20, 2011 death of Ashley Clark, who was struck by Festa's car at a bus stop on Rte. 97 in Summit Township. CHRISTOPHER MILLETTE/ERIE TIMES-NEWS

For the third time in two years, the courts are weighing whether there is enough evidence for a jury to decide the case against a Lake City man accused of killing a 13-year-old girl and injuring a 17-year-old schoolmate as they crossed a highway to board a school bus.

The trial of Tyler Festa, 21, halted abruptly Tuesday after the prosecution rested and Festa's lawyer, Peter Sala, asked Judge John Trucilla to grant a motion for a judgment of acquittal.

Sala said the judge must not let the case proceed to the jury because the prosecution cannot prove beyond a reasonable doubt that Festa's conduct was criminally reckless at the time of the Dec. 20, 2011, crash on Route 97 in Summit Township.

Ashley Clark was struck and killed and her schoolmate, Taz Giannelli, was struck and injured by Festa's northbound car at the entrance of Popp's Mobile Home Park as they crossed the road to board a southbound bus.

Trucilla plans to rule on the motion this morning. If he denies it, the trial would proceed with defense testimony.

At issue primarily is whether District Attorney Jack Daneri and Assistant District Attorney Justin Panighetti have presented enough evidence to prove Festa consciously disregarded the risk his conduct posed to the children.

Erie County Judge Shad Connelly two years ago threw out the case before trial based on the same question. He said evidence Festa was driving sober, below the speed limit and did not expect to encounter the children -- who, police said, were crossing the road improperly, or jaywalking, at the time of the collision -- did not support the prosecution's claim that Festa acted with the level of recklessness required to prove criminal charges.

The state Superior Court, in a May ruling that was not reconsidered by the state Supreme Court, then ruled that there was enough evidence in dispute for the case to be weighed by a jury. The appellate courts returned the case to Erie County in December for the trial that began Monday.

In a heated exchange conducted without the jury present, Sala argued Tuesday the evidence cannot sustain a finding that Festa was driving recklessly, which requires, among other things, the prosecution prove Festa grossly deviated from the standard of care a reasonable person would observe and consciously disregarded the risk his conduct would cause death or injury.

Festa told police he saw the flashing amber school bus lights and children from 200 yards or less but that they did not immediately "register" in his mind. Sala said the courts have ruled that, absent other misconduct, such failures of perception do not rise to the level of a crime.

Festa, Sala said, behaved reasonably: Driving sober and not talking on a phone or texting, Festa approached the very dark scene of the collision at an estimated speed of 45 to 37 mph in a 55 mph zone. He then applied his brakes and skidded more than 30 feet and took evasive action about one-half second before his car hit Clark and Giannelli, who had improperly entered the roadway as the bus approached the stop and before the school bus's red stop lights were activated.

Throughout the incident, the school bus had only its amber lights flashing. The red stop lights were turned on nearly 11 seconds after the collision, a video showed. Bus driver Darcy Bennett testified Tuesday she saw Festa's car approaching and panicked and did not hit the stop light. Witnesses also said there was a long-standing problem with children improperly crossing the road to board the bus before its stop light was activated.

Daneri countered that Festa had a duty to proceed with caution and be prepared to stop his car once he saw the school bus amber lights and the children. Festa, he said, "failed to perceive" the amber lights, was not able to stop his car as required and struck the children. A reasonable person, he said, would have proceeded with more caution.

If the case proceeds, Daneri plans to argue that Festa tried to pass the bus with the amber lights flashing because he feared being late for work, which started at 7:30 a.m. at UPMC Hamot.

Trucilla praised the advocacy of both sides but also challenged both lawyers. Regarding Festa's alleged conscious disregard of the risk, the judge asked Daneri, "how could he anticipate there'd be schoolchildren in the road?"

A gross deviation from the standard of care, the judge said, would be seen in a driver who is speeding down the road at 90 mph, passing everybody he could.

Trucilla pressed Sala: Could a jury not conclude that Festa had a duty to proceed more cautiously once he glimpsed the lights and children ahead?

LISA THOMPSON can be reached at 870-1802 or by e-mail. Follow her on Twitter at twitter.com/ETNthompson.